Bhargavan Pillai vs District Geologist
2025 Latest Caselaw 5693 Ker

Kerala High Court

Bhargavan Pillai vs District Geologist on 18 August, 2025

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

     MONDAY, THE 18TH DAY OF AUGUST 2025 / 27TH SRAVANA, 1947

                        WP(C) NO. 20083 OF 2023

PETITIONERS:

    1     BHARGAVAN PILLAI,
          AGED 60 YEARS
          S/O KRISHNA KURUP, PADINJAREVEETIL,KIZHAKETHIL,
          KURUMPALA (S) POST, PANDALAM, PATHANAMTHITTA DISTRICT,
          PIN - 689501

    2     REGHU KUMAR G,
          AGED 60 YEARS
          S/O GOPALAN ACHARY, CHAITHRAM HOUSE, KURAMPALA (S)
          POST, PANDALAM, PATHANAMTHITTA DISTRICT, PIN - 689501

    3     MURALEEDHARAN K,
          AGED 59 YEARS
          S/O KOCHU KUNJU, VALUTHUNDIL, KURAMPALA (S) POST,
          PANDALAM, PATHANAMTHITTA DISTRICT, PIN - 689501


          BY ADVS.
          SRI.P.M.RAFEEK
          SRI.U.NIDHIN
          SMT.GIA MATHAI KANDATHIL
          SMT.SARA JOHN




RESPONDENTS:

    1     DISTRICT GEOLOGIST,
          DEPARTMENT OF MINING AND GEOLOGY,DISTRICT OFFICE,
          PATHANAMTHITTA DISTRICT, PIN - 689533

    2     STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY-SEIAA,
          REP. BY ITS MEMBER SECRETARY, 4TH FLOOR, KSRTC BUS
          TERMINAL COMPLEX, THIRUVANANTHAPURAM, PIN - 695001
 W.P.(C)No. 20083 of 2023

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     3       NATIONAL HIGHWAYS AUTHORITY OF INDIA - NHAI,
             G-586, SECTOR-10, DWARAKA P.O, NEW DELHI, REP.
             BY ITS CHAIRMAN, PIN - 110075
     4       CHAIRPERSON (DISTRICT COLLECTOR),
             DISTRICT DISASTER MANAGEMENT AUTHORITY, 2ND
             FLOOR, DISTRICT COLLECTORATE, PATHANAMTHITTA,
             KERALA, PIN - 689645
     5       PANDALAM MUNICIPALITY,
             PANDALAM, PATHANAMTHITTA,
             REP. BY ITS SECRETARY, PIN - 689501
     6       SECRETARY,
             PANDALAM MUNICIPALITY, PANDALAM,
             PATHANAMTHITTA DIST., PIN - 689501
     7       VISWASAMUDRA ENGINEERING PVT. LTD,
             RAHEJAN BUILDING, HAMEED KUNJU NAGAR, PADA
             NORTH,KARUNAGAPALLY, KOLLAM,REP. BY ITS
             AUTHORIZED SIGNATORY, PIN - 690518


             BY ADVS.
             SHRI.LEJO JOSEPH GEORGE - FOR R3
             SRI.K.R.ARUN KRISHNAN
             SRI.E.C.KURIAKOSE
             SRI.S.SREEKUMAR (SR.)
             SMT.DEEPA K.RADHAKRISHNAN
             SHRI.SANAL C.S
             SHRI.VISHAK K.V.
             SMT.DEVISHRI.R - GOVERNMENT PLEADER
             SRI.M.P.SREEKRISHNAN - STANDING COUNSEL
             SMT.T.S.MAYA - PANDALAM MUNICIPALITY
             SRI.B.G.BIDAN CHANDRAN - STANDING COUNSEL (NHAI)


         THIS WRIT PETITION (CIVIL) HAVING BEEN CAME UP FOR
HEARING ON 29.07.2025, THE COURT ON 18.08.2025 DELIVERED
THE FOLLOWING:
 W.P.(C)No. 20083 of 2023

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                                                              "C.R."


                            J U D G M E N T

Dated this the 18th day of August, 2025

The petitioners, 3 in number, are residing in and around

'Erichurili Mala', a hillock at Kurumbala Village,

Pathanamthitta. They are apprehensive of the large scale

excavation of earth from the said hillock by the 7th

respondent, who purchased that land recently. The

excavation apprehended is in connection with the

construction of Kottukulangara to Kollam highway bypass.

Ext.P1 is a mass petition given to the Director of Mining.

Ext.P2 is the quarrying permit issued to the 7th

respondent permitting excavation and removal of ordinary

earth from 43.20 Ares of land in Erichurili Mala. Although

environmental clearance is mandatory, the 2 nd respondent

State Environmental Impact Assessment Authority ('SEIAA',

for short) had issued Ext.P3 expressing no objection to

grant exemption from obtaining environmental clearance for

sourcing or borrowing of earth for the construction of the

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National Highway. Ext.P4 is a Circular issued by the

Government of Kerala exempting the requirement of

environmental clearance to borrow ordinary earth for

highway related works and for construction of village

roads and other government sponsored schemes. The

petitioners would maintain that Ext.P4 Circular is illegal.

Ext.P5 is a notification issued by the Ministry of

Environment, Forest and Climate Change (MoEF & CC) dated

28.03.2020, granting exemption for certain cases from the

requirement of environmental clearance, which was brought

in by virtue of amendment to Appendix-IX of the EIA

notification, 2006. Serial no. 6 therein is extraction or

sourcing or borrowing of ordinary earth for the linear

projects such as roads, pipelines etc. The exemption

granted vide Ext.P5 was challenged before the National

Green Tribunal by filing Original Application nos.

190/2020 and 68/2020. The National Green Tribunal observed

that grant of blanket exemption for excavation of earth is

against the norms of sustainable development. Ext.P6 is an

O.M issued by the MoEF & CC, which is a clarification

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issued on the applicability of EIA notification, 2006, for

excavation of ordinary earth from borrow area for linear

projects. After deliberation by the Expert Appraisal

Committee (EAC) and based on its recommendations, and also

in view of the direction of the National Green Tribunal,

the Ministry decided that exemption from E.C for

extraction or sourcing or borrowing of ordinary earth for

linear projects shall be subject to Standard Operating

Procedure enclosed to the Office Memorandum. The

petitioner would maintain that the linear project of

Kottukulangara to Kollam highway bypass is a project,

which requires separate E.C for excavating earth. Ext.P7

is a letter issued by the 2 nd petitioner to the 1st

respondent pointing out the illegality in issuing Ext.P2

quarrying permit to the 7th respondent. Ext.P8 is a

similar letter issued by the 2nd petitioner to the 2nd

respondent pointing out the illegality in grant of Ext.P3

'No Objection'. Ext.P9 is an Order whereby the 4 th

respondent, Chairperson of the District Disaster

Management Authority, has evacuated residents near to

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Athiramala due to heavy rainfall, which is produced to

point out that the topography and landscape of 'Erichurili

Mala' are similar to those of Athiramala. By Ext.P10

representation, the 2nd petitioner requested the 4th

respondent Chairperson/District Collector, to take steps

to stop the excavation of earth from 'Erichurili Mala'.

Ext. P11 is a resolution passed by the 5 th respondent to

obtain a 'Non-Objection Certificate' for carrying out

quarrying operations. By Ext. P12 representation, the 2 nd

petitioner requested the 6th respondent to issue a stop

memo to the 7th respondent, preventing the latter from

making preparations for excavating earth from 'Erichurili

Mala' without obtaining a permit from the 5 th respondent.

The petitioners would maintain that Exts.P2 and P3 are

illegal and liable to be quashed. It is highlighted by the

petitioners that an environmental clearance from the 2 nd

respondent is a mandatory pre-condition for quarrying the

subject site and Ext.P2 quarrying permit issued, in the

absence of the same, is illegal. On such premise, the

petitioners seek Exts.P2 and P3 to be quashed, besides

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issuance of a Writ of Mandamus directing respondent nos. 4

and 5 to take steps to stop excavation of earth from

'Erichurili Mala' by the 7th respondent.

2. The contesting 7th respondent filed counter affidavit

inter alia contending as follows:

The 7th respondent is the selected bidder of the National

Highway Authority of India (the 3rd respondent) for the

work of National Highway (six-lane) from Kottukulangara to

Kollam bypass, which requires huge amount of ordinary

earth. Accordingly, the 7th respondent purchased land in

Pathanamthitta. 7th respondent made application under the

Kerala Minor Mineral Concession Rules, 2015, seeking

permission to excavate ordinary earth. Accordingly,

permission was issued and the 7th respondent company paid

the royalty. A revised mining plan was filed by the 7th

respondent company as per the guidelines issued by the

MoEF & CC, produced with Ext.R7(a). By Ext.R7(b), the

revised mining plan was approved by the 1st respondent

Geologist. A clarification was sought to the Judgment of

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the Hon'ble Supreme Court in Noble M. Paikada v. Union of

India [2024 SCC Online SC 369] and by Order dated

15.05.2024, the Hon'ble Supreme Court clarified that work

orders which were issued prior to 21.03.2024 will not be

affected by the Judgment in Noble M. Paikada (supra). The

subject work order was issued to the 7th respondent

company on 06.08.2021, wherefore respondent no. 7 is

entitled to the exemption granted by virtue of the

clarificatory Order. The 3rd respondent/NHAI by Ext.R7(c)

letter brought the above matter to the notice of the

Geologist. On such premise, the 7th respondent seeks the

Writ Petition to be dismissed.

3. Heard Sri.P.M.Rafeek, learned counsel the

petitioners; Smt.Devishri R., the learned Government

Pleader on behalf of respondents 1 and 4;

Sri.M.P.Sreekrishnan, the learned Standing Counsel for the

2nd respondent SEIAA; Sri.B.G Bidan Chandran, learned

Standing Counsel for the 3rd respondent NHAI;

Smt.T.S.Maya, for the 5th respondent Municipality and

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learned Senior Counsel Sri.S.Sreekumar, duly instructed by

Advocate K.R.Arun Krishnan, on behalf of the contesting

7th respondent. Perused the Records.

4. From the arguments raised by the learned counsel for

the respective parties, the issue centers around the

Judgment of the Hon'ble Supreme Court in Noble M. Paikada

(supra), as also, the clarificatory Order of the Hon'ble

Supreme Court to that Judgment, which is produced along

with Ext.R7(c) by the 7th respondent. The impact of this

clarificatory Order dated 15.5.2024 has already been

considered by, as many as, four learned single judges of

this Court. The first is the Order dated 11.11.2024 in I.A

No. 1/2024 and W.P(C)No.32704/2024, produced at Ext.P19

rendered in a similar fact situation, wherein the 8 th

respondent/concessionaire claimed the benefit of the

clarificatory Order obtained by the National Highway

Authority of India to the Judgment in Noble M. Paikada

(supra). In that case also, the issue involved was the

excavation of a large hill, on the premise that the 8 th

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respondent therein was the contractor appointed by the

NHAI to execute a work, which falls under the exemption

granted by the clarificatory Order above referred. The

learned Single Judge took stock of the fact that the 8 th

respondent therein had not obtained any E.C for conducting

mining/excavation activities. The work order referred to

in Ext.R8 A in that case does not mention about sourcing

or borrowing of ordinary earth from the site in question.

The work order only refers to a linear project. The

exemption from E.C was granted only by virtue of the

amendment to the EIA notification (produced as Ext.P5 in

the present Writ Petition), which was struck down by the

Supreme Court in the Judgment in Noble M. Paikada (supra).

Thus, the exemption from obtaining E.C, a mandatory

requirement for extraction, would not survive any more and

that the clarification issued by the Supreme Court was

only for projects, for which work orders were issued

before the cut off date, that is, 21.03.2024. The learned

Single Judge found that the excavation of ordinary earth

by the 8th respondent therein (the contractor of the NHAI

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in the project in question) cannot be brought within the

scope of the exemption granted under the clarificatory

Order and therefore, the requirement of an environmental

clearance cannot be dispensed with. Accordingly, the

request for vacating the interim order, which directed

prevention of excavation was dismissed. Although the said

Order is passed in I.A, the matter is exhaustively seen

dealt with.

5. The next judgment is the one produced at Ext.P20,

wherein a police protection was sought for, on the premise

that the work in question stood accepted by the

clarificatory Order of the Supreme Court. There, the issue

is seen considered by the learned Single Judge at length

and found in paragraph no.10 that, although the work order

was issued prior to the cut off date, the permit was

issued thereafter and as on the date of issuance of the

permit, the exemption provided for extraction of earth for

linear projects was not in existence. Accordingly, the

police protection sought for was dismissed.

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6. The third judgment to be taken note of is the one

produced at Ext.P25 in W.P.(C)No.2090/2025, wherein a

Grama Panchayat sought for quashing a quarrying permit.

There also, Noble M. Paikada (supra) and the clarificatory

Order of the Hon'ble Supreme Court dated 15.05.2024 have

been considered by the learned Single Judge. After taking

stock of Ext.P20 judgment of the learned Single Judge, as

also the judgment of the Division Bench in

W.A.No.1877/2024 (which took stock of the fact that

Ext.P20 judgment was rendered in a Writ Petition seeking

police protection and hence the findings would not

preclude the petitioner therein from seeking substantive

relief and declaration), the learned Single Judge held

himself in complete agreement with the interpretation made

in Ext.P20 judgment. That apart, the learned Single Judge

also took stock of the precautionary principle and the

judgments on the point, ultimately to hold that the

quarrying operations cannot be continued without a prior

E.C. It could thus be seen that the benefit of the

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clarificatory Order of the Hon'ble Supreme Court in Noble

M. Paikada (supra) was not considered in favour of the

project proponent therein.

7. The fourth one is by yet another learned Single Judge

in Wilson K John and Others v. Joint Secretary,

Industries Department and Others [W.P.(C)No.12684/2024 and

connected matters]. A common judgment was rendered in

three Writ Petitions. The main issue involved in those

cases was, whether an environmental clearance has to be

obtained by the concessionaires, who have undertaken the

work on behalf of the NHAI for quarrying earth to be used

for the development of the Highway, the precise issue

which was fallen for consideration in the subject Writ

Petition as well. After taking stock of Noble M. Paikada

(supra) and the clarificatory Order, the learned Single

Judge toed in line with the law laid down by the learned

Single Judge in M/s Oriental Structural Engineers Private

Limited v. The Circle Inspector of Police and Others

[W.P.(C)No.34959/2024 - Ext.P20], the Division Bench

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judgment rendered in appeal therefrom [W.A.No.1877/2024],

and the judgment of the learned Single Judge in

Nedukunnam Grama Panchayath v. The State of Kerala and

Others [W.P.(C)No.2090/2025]. Ultimately, the learned

Single Judge held that the benefit of the clarificatory

Order is sought by the concessionaire, whereas, the Order

only safeguards the work orders for linear projects. It

has been held that every person who undertakes the work of

such linear projects are not entitled to exception. The

benefit of the clarificatory Order is only for the work

orders issued by the NHAI, which cannot be extended to the

concessionaire. The obligation of the concessionaire to

extract, source or borrow ordinary earth has to be met by

undertaking the work of mining or by procuring ordinary

earth from suppliers. For excavation of ordinary earth,

the suppliers will have to obtain the environmental

clearance. To say that the concessionaire requires no EC

for excavating soil would be extending the clarification

issued by the Hon'ble Supreme Court beyond its scope and

intent. Thus, the claim of the concessionaire/contractor

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was negated in that case as well. An appeal was carried

before the Division Bench from the above-referred judgment

of the learned Single Judge in Writ Appeal No.497/2025 and

connected cases. Although appellants pressed for an

interim order, the same was refused vide Order dated

11.04.2025, produced at Ext.P24, finding that there is no

prima facie reason to stay the impugned judgment, so as to

permit the appellants to remove the ordinary earth.

8. With these input, I will now consider the issue at

hand, for the correct appreciation of which, this Court

will have to start from Ext.P5 notification dated

28.03.2020. That notification, by virtue of the amendment

brought into Appendix-IX to the EIA Notification, 2006,

granted exemption to certain cases from the requirement of

environmental clearance. Serial No.6 to the amended

Appendix-IX is 'extraction or sourcing or borrowing of

ordinary earth for the linear projects such as roads,

pipelines etc.'. This exemption granted vide Ext.P5 was

put to challenge, which was ultimately decided by the

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Hon'ble Supreme Court in Noble M. Paikada (supra). The

Hon'ble Supreme Court struck down the above serial no.6 of

the amended Appendix-IX of the EIA notification and

quashed the same. Thereupon, the NHAI preferred an interim

application seeking clarification of the above judgment.

It is in that application, Ext.R7(c) Order has been passed

by the Hon'ble Supreme Court on 15.05.2024.

9. Before analyzing the scope of the clarificatory

Order, this Court has directed the 3 rd respondent to

produce the interim application filed before the Hon'ble

Supreme Court, so as to understand the context in which

that application was filed, as also, its scope. From a

perusal of paragraph no.6 of that application, the

applicant-NHAI would espouse the magnitude of the adverse

impact which will be faced by NHAI. The same is seen

espoused in paragraph no.12 as well. In paragraph no.14,

it is specifically averred that, to discharge the

statutory functions of the NHAI, it is empowered to award

infrastructural contracts to private companies,

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contractors/concessionaires etc., for construction,

development, maintenance and operations of National

Highways. The requirement of ordinary earth in connection

with the project is seen espoused in paragraph no.15,

wherein the inbuilt mechanism to ensure environmental

protection is also seen referred to. Paragraph no.32

refers to about 485 infrastructural road projects in

progress at different parts of the country, which are in

different stages of completion. Annexure-P3 to the

petition is a list of all the ongoing projects of the

National Highway. Paragraph no.34 again specifically

refers to the implications on the contractor/

concessionaire of the judgment in Noble M. Paikada

(supra). The plight of the concessionaires/contractors

that they may not be able to absorb the overhead costs

arising out of the delay etc., are also seen espoused.

Ultimately, the prayer sought for was to recall the

judgment in Noble M. Paikada (supra) or in the alternative,

to allow the applicant/NHAI to complete the NH projects,

which are mentioned in Annexure-P3 to the petition.

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10. It is in the above state of affairs as pleaded in the

petition and as noticed above, that Ext.R7(c) Order has

been passed by the Hon'ble Supreme Court, clarifying that

the projects, for which work orders were issued by the

applicant/NHAI prior to 21.03.2024, will remain unaffected

by the judgment in Noble M. Paikkada (supra). By virtue of

the clarification Order, NHAI was directed to file an

affidavit giving a list of the projects for which work

orders have been issued prior to 21.03.2024 and also to

produce the copies of the work orders and other relevant

documents showing service of the work order on contractors

within a period of one month from the date of the

clarificatory Order. It could thus be seen that the

Supreme Court was fully aware of the fact that the work

orders are being executed through contractors/

concessionaires. It was again clarified that the work

orders which were issued prior to 28.03.2020 require

environmental clearance, and therefore the benefit of the

clarificatory Order will not be available to such work

orders.

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11. It could thus be seen that the Hon'ble Supreme Court

has clarified that in respect of projects of NHAI, of

which the work orders were issued prior to 21.03.2024, but

after 28.03.2020, will remain unaffected by the judgment

in Noble M. Paikada (supra). In other words, the

declaration of law made by the Supreme Court, insofar as

Ext.P5 notification amending Appendix-IX to the EIA

notification, 2006, and quashing the same, has been

rendered inapplicable to those works which are specified

above. This would be the impact of the clarificatory Order

issued by the Supreme Court.

12. Now, the moot question is whether a contractor who is

executing the work of NHAI, which stands exempted by

virtue of the clarificatory Order dated 15.05.2024, can

claim the benefit of that Order. I am of the opinion that

he is, provided the extraction, sourcing or borrowing of

ordinary earth is exclusively for the linear projects. An

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interpretation otherwise would defeat the precious right

secured by the NHAI by seeking a clarification to the

judgment and obtaining the same by Order dated 15.05.2024.

It goes without saying that the scope of an Order has to

be addressed and interpreted on the strength of the

pleadings placed before the Court and the arguments

addressed. As already taken note of, the specific pleading

which was before the Hon'ble Supreme Court in the

clarification petition preferred by NHAI was the

difficulties which they would face on account of the

judgment in Noble M. Paikada (supra), in respect of

on-going projects. The fact that the works of NHAI are got

implemented by engaging contractors/concessionaires is

very much pleaded in that interim application. Besides,

the impact of the judgment in Noble M. Paikada (supra) on

such contractors is also pleaded. Thus, Ext.R7(c)

clarificatory Order passed, taking stock of such

pleadings, has to be read and interpreted meaningfully, so

as to give effect to that Order; and not in a manner

circumventing the benefit obtained by NHAI. This is all

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the more so, when Ext.R7(c) clarificatory Order

specifically refers to provide proof regarding service of

work orders on the contractors. Thus, if the contractor is

specifically confining his activity to the work of the

NHAI and if his quarrying permits also reflect such

limitation of confining to the exempted work of the NHAI,

then to deny the benefit of the clarificatory Order only

for the reason it is sought for by the contractor would

defeat the very purpose of the clarificatory Order.

Ideally, it is for the NHAI to seek the benefit of the

clarificatory Order. However, if a Writ Petition is filed

challenging the authority of the contractor to indulge in

quarrying activity, though enabled by a permit or license,

it would quite be open for the NHAI to point out that the

work which is undertaken by the contractor pertains to the

exempted works of the NHAI only. However, this has to be

done either by NHAI or by the contractor/concessionaire by

producing adequate and sufficient documents, in support

thereof.

Exhibit P3                 TRUE   COPY   OF   THE   LETTER   DATED
                           22/2/2020    ISSUED    BY    THE    2ND
                           RESPONDENT.
Exhibit P4                 TRUE COPY OF THE SAID CIRCULAR NO.

Exhibit P8                 TRUE   COPY   OF   THE   LETTER   DATED
                           14/06/2023    ISSUED    BY   THE    2ND
                           PETITIONER TO THE 2ND RESPONDENT.
Exhibit P9                 TRUE COPY OF THE ORDER ISSUED BY THE